TMI Blog2018 (6) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... lassified under CETH 6005, they become entitled to the benefits of the Notification No. 30/2004 dated 09.07.2004 (Sl. No. 15) subject of the conditions prescribed therein. Main conditionality is that the Appellant should not have availed CENVAT Credit on inputs. Appeal allowed - decided in favor of appellant. - Appeal No. E/50203/2017-DB - A/52047/2018-EX[DB] - Dated:- 22-5-2018 - Mr. V. Padmanabhan, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Represented by Shri Amit Jain, Shri Rahul Tanqri, Advocates for the appellant. Represented by Shri M.R. D.R. for the respondent. Per V. Padmanabhan: The present appeal challenges the Order in Appeal No. 386/2016-17 dated 19.10.2016. 2. The dispute covers the period October 2012 to December 2013. The appellant is engaged in the manufacture of various goods including Warp Knit Fabric . The appellant classified the product under CETH 6005 and claimed the benefit of exemption under Notification No. 30/2004 dated 09.07.2004 (Sl. No. 15). This entry in the Notification grants full exemption to all goods falling under Chapter 60, subject to the condition that no CENVAT Credit has been availed on the inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified the impugned order. He submitted that the adjudicating authority below have arrived at the classification under Chapter 39 on the basis of the decision of the Hon'ble Madhya Pradesh High Court in the case of M/s Raj Packwell vs. Union of India,1990 (50) E.L.T. 201 (MP) in which the Hon'ble High Court has observed that HDPE strips will not automatically justify the classification under heading 54.06, only based on the effect that the width is less than 5mm. He also relied upon the decision of the Tribunal in the case of M/s Promact Plastics Pvt. Ltd. 1993 (67) E.L.T 309 (Tri.) which has also been upheld by the Hon'ble Supreme Court as reported in 2000 (119) E.L.T. A 173 (SC). 7. In the rebuttal, the learned Advocate submitted that the decisions cited by the Revenue have been passed before the amendment carried out in Chapter 54. He submitted that Chapter Note IA was added to Chapter 54 with effect from 29.06.2010 and based on the addition of such Chapter Note, the Tribunal has distinguished the decision of M/s Raj Packwell (Supra) in the case of M/s Flora Agrotech vs. Commissioner, 2015 (319) E.L.T. 333 (Tri. Ahmedabad) as well as in the case of Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the product Knitted Fabrics Shed Net made out of plastic strips less than 5mm in width. First appellate authority has decided the case of appellant mainly in the light of decision given by M.P. High Court in the case of Raj Packwell Ltd. v. UOI [1990 (50) E.L.T. 201 (M.P.)] which has been followed by Rajasthan High Court and CESTAT Delhi. However, the judgment of M.P. High Court in the case of Raj Packwell Ltd v. UOI (Supra) is not applicable to the facts and circumstances of the present appeal because of the following reasons :- (i) The product involved in the case before M.P. High Court was HDPE woven sacks and not Knitted Fabrics Shed Net. (ii) In the case before M.P. High Court, it was not explained as to what is a synthetic Textile material when HDPE woven sacks are named as 'Plastic Woven Sacks' in common parlance. (iii) Before M.P. High Court certificates of several authorities like Textile Commission, DGTD, etc., were produced to the effect that HDPE Sacks are articles of plastic unlike the present appeals where several authorities have opined the product of the appellant is made of textile materials. In view of the above distinguishing fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985 was introduced w.e.f. 29-6.2010 and was made retrospective in operation. As per this chapter note filament yarn made from plastic or plastic waste have been considered to be textile materials. This amendment was not available in the statute books when judgement was delivered by M.P. High Court in the case of Raj Packwell Ltd. v. UOI (supra) which was followed by Rajasthan High Court and CESTAT Benches. It is an undisputed fact that the plastic strips used in making the 'Knitted Fabrics Shed Net' is less than 5mm width. As per Section Note 1(p) of Chapter 39 strip of plastic less than 5mm in width is not classifiable under Chapter 39 of the CETA, 1985. As per Section Note 1(g) of Section XI of the CETA, 1985 strips of the like of plastic 5 mm less are classifiable in Section (Textile and Textile Articles). By virtue of tariff description under Tariff Heading 54.04 of CETA, 1985 plastic strip or the like up to 5mm are required to be classified as man-made filaments; strip and the like of man-made textile materials. When there is a classification of man-made textile materials of specified description given in the Central Excise Tariff Act, 1985 itself then there is no nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the facts and circumstances of the present case. 6. In view of Chapter Note 1(p) of Chapter 39, Section Note 1(g) of Section XI Chapter Notes 1 1A of the Chapter 54 of the Central Excise Tariff Act, 1985; read with relevant HSN Explanatory Notes; the 'Knitted Fabrics Shed Nets' manufactured by appellant will be appropriately classifiable under Chapter 60 of the Central Excise Tariff Act, 1985. 7. Appeal filed by the appellant is allowed. 12. The Tribunal has recorded similar observations in the case of Sunpac also. By following the ratio of the decisions of the Tribuna in the above two cases, we order classification of the impugned goods under CETH 6005. 13. Once the goods are classified under CETH 6005, they become entitled to the benefits of the Notification No. 30/2004 dated 09.07.2004 (Sl. No. 15) subject of the conditions prescribed therein. Main conditionality is that the Appellant should not have availed CENVAT Credit on inputs. 14. The learned Advocate, at this stage, submits that the Appellant has already carried out reversal in terms of Rule 6(3)(1) of the CENVAT Credit Rules, and such reversal will entitle them to claim the benefit under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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